On Dec. 24, 2008, the Ohio Court of Appeals for the Fifth District, 2008 Ohio 6898, 2008 Ohio App. LEXIS 5758. affirmed (3 to 0) the decision of a trial judge in Stark County Court of Common Pleas, granting summary judgment to the employer. The employee breached the “Last Chance Agreement” entered into between the company, the employee and the labor union, Metalworkers Alliance, Inc. Worker was hired in 1979 at the plant which manufactures metal turbine blades for aircraft engines. He worked as a pipefitter in the Maintenance Department. The collective bargaining agreement has a four-step disciplinary process: first violation – verbal warning; second violation – written warning; third violation – suspension; fourth violation – termination. Serious violations can result in immediate termination. He received a verbal warning on Jan. 26, 2000 for smoking in the plant. He received a written warning on Feb. 2, 2000 for again smoking in the plant. On June 13, 2000, he had an argument with a facility engineer where he threw down his tools. The company’s HR Manager recommended immediate termination, but agreed to a Last Chance Agreement, which was signed on August 17, 2000 by the HR Manager, the worker and his union. The LCA provided that he could be discharged for “any violation of the company’s rules and regulations, no matter how slight (e.g., smoking in the plant, failure to follow instructions, failure to abide by any and all safety rules, etc.).” The LCA would remain in effect for the “life of his employment with XXXXXXXXX, Inc.” He received a verbal warning on June 22, 2005 for failure to wear fall protection. Instead of immediate termination, the company agreed to give him one last chance – after he and the union signed a “reaffirmation” of the LCA of Aug. 17, 2000. On July 22, 2005, a supervisor observed him not wearing the side shields on his safety glasses. He was verbally counseled. One week later, the Supervisor of Environmental Health and Safety again saw him not wearing side shields. He was suspended and terminated per the LCA. He then filed a complaint with OSHA, and with the State Employment Relations Board; both complaints were dismissed. He also filed a charge of discrimination with the Ohio Civil Rights Commission, alleging “gender discrimination” (harsher discipline of men, than of women) – the OCRC found no probable cause. Plaintiff then appealed the OCRC’s finding to the County Court of Common Pleas, which after pre-trial discovery, affirmed the decision of the Commission. He appealed to Ohio Court of Appeals, which also ruled against him. The Court cited plaintiff’s testimony at his deposition, where he admitted that discipline was imposed based on the supervisor [not the gender of the employee]” “Q. Could it depend on who the supervisor was? A. Oh, it could be anything. Possible anything. It could be a supervisor or I might know somebody hirer up the ladder and I don’t have to worry about it. It depends on who you are. And it depends on what mood the plant’s in.” The Court also found persuasive the testimony of the Human Resources Manager, who state that while he “was aware the supervisors were not uniformly enforcing the plan rules against both men and women” that since 1998, the company had entered into Last Chance Agreements with at least seven female employees and three of these females were subsequently discharged. In conclusion, the Court held: “The LCA stated that Appellant would be subject to termination for violation of the company rules and regulations, which included violation of the safety rules. Appellant failed to wear his safety glasses with side shields on July 29, 2005…. Appellant was in violation of the company rules and regulations and the terms of his LCA and was therefore subject to disciplinary action, which was termination.” Legal Lessons Learned: Last Chance Agreement can be very effective tools to either allow an employee to save their job, or to in effect, terminate themselves. When a union also signs the LCA, it is unlikely the union will file a grievance and seek arbitration following termination.
This piece was taken from my good friend and attorney Larry Bennett’s monthly newsletter. Larry is a practicing attorney and is now also the Deputy Director of the Fire Science Program at the University of Cincinnati. A great man, great attorney, and a former firefighter. If you have questions about your LCA program you can contact Larry at [email protected]